collateral estoppel did not preclude the introduction of medical evidence in a termination hearing, even though that same evidence was originally introduced in a claim petition hearing and rejected as not credible, because the issues in the two proceedings were not identical
How later courts described this case
- collateral estoppel did not preclude the introduction of medical evidence in a termination hearing, even though that same evidence was originally introduced in a claim petition hearing and rejected as not credible, because the issues in the two proceedings were not identical
- 90% success rate for surgery and ability to return to work within three months
Written by the judges who cited it.
The opinion
McGINLEY, Judge,
dissenting.
I respectfully dissent.
The majority concludes that in Finding of Fact No. 10, the referee unfairly characterizes Dr. Haser’s testimony with regard to the risks of Claimant’s reconstructive surgery and thus makes a finding not supported by substantial evidence. I disagree. Dr. Haser clearly testified that the operation may not work and could possibly result in damage to certain nerves and numbness to the foot. (Haser Deposition, N.T. at 23.) Dr. Haser also testified as to risks of infection and potential complications from being placed under anesthesia. (Haser Deposition, N.T. at 22-24.) I would hold that this testimony provided substantial evidence for Finding of Fact No. 10 which supports the referee’s conclusion that Claimant’s refusal of the recommended surgery was not unreasonable in view of the risks noted by Dr. Haser. Accordingly, I would affirm.